The Power of the Federal Judiciary to De¬ 
clare Legislation Invalid Which 
Conflicts With the Federal 
Constitution. 

By DAVID K. WATSON, of the Columbus, Ohio, Bar, 
Arthur of Watson on The Constitution * 


It seems popular in these days to attack the Federal Judiciary, 
and accuse them of assuming and exercising powers which it is 
claimed the Constitution does not confer upon them. Some 
eminent jurists and constitutional writers maintain that the 
Federal Judiciary have no authority to declare legislation void, 
when it is in conflict with the Constitution of the United States. 

In an address delivered on the 27th of April, 1906, before the 
law department of the University of Pennsylvania, Hon. Walter 
Clark, Chief Justice of the Supreme Court of North Carolina, 
used the following language when referring to the Convention 
of 1787, which framed the Federal Constitution: 

“A proposition was made in the convention—as we now know 
from Madison’s Journal—that the judges should pass upon the 
constitutionality of acts of Congress. This was defeated 5 June, 
receiving the vote of only two states. It was renewed no less 
than three times, i. e., on 6 June, 21 July, and finally again for 
the 4th time on 15 August.” 

In the same address the learned chief justice also said: 

“The subsequent action of the Supreme Court in assuming 
the power to declare acts of Congress unconstitutional was with¬ 
out a line in the Constitution to authorize it, either expressly or 
by implication.” (Cong. Record, June 15, 1908, pp. 8063, 
8065.) 

This address of Chief Justice Clark is undoubtedly largely 
responsible for the charge of usurping authority so frequently 


2 



made against the Federal Courts. The address has been p, 
lished in the Congressional Record and certain members of ti 
National House of Representatives have quoted from it in theii 
speeches delivered in the House and published in the Record.* 
The address and speeches have been quoted in partisan papers 
throughout the country and in this way the charge of usurpa¬ 
tion of authority by the Federal Judges has reached the great 
body of the American people. The result is that the people 
have to a great extent become dissatisfied with the Federal 
Judiciary. 

The question is one of great interest to the whole nation as 
well as to the Federal Judges and deserves a careful and im¬ 
partial examination. 


The Question in the State Courts Prior to the Adoption of 
the Federal Constitution. 

At the time the Convention met which framed the Federal 
Constitution, which was in May, 1787, five states through their 
courts, had declared certain statutes passed by their respective 
legislatures to be in conflict with their state constitutions and 
consequently void, to-wit: Virginia, Rhode Island, New York, 
New Jersey and North Carolina, One of the earliest, if not the 
earliest, of these cases, was Commonwealth v. Cat on, decided in 
1782, in which the Court of Appeals of Virginia held an act of 
the Legislature to be unconstitutional, because it deprived the 
Governor of the state of the pardoning power which had been 
conferred upon him by the Constitution of the state. 

*Notably Hon. A. W. Lafferty, of Oregon, in the Record of January 
24, 1912, and Hon. Isaac R. Sherwood, of Ohio, in the Record of May 2, 
1912. Each of these members repeats in his speech the charge of usur¬ 
pation made by Chief Justice Clark against the Federal Judiciary. 
Professor William Trickett, Dean of the Law School of Dickinson 
College, and one of the most profound legal writers of the country, 
has also attacked the Federal Judiciary for assuming to declare laws 
unconstitutional in the 40 and 41 vols. of The American Law Review, 
pp. 356 and 651, respectively. So Melville M. Bigelow, the eminent 
legal writer, in his late work entitled “A False Equation,” p. 133, seems 
to question the right of the courts to exercise such power. 



8 


Judge Wythe (in whose office, Thomas Jefferson, James Madi¬ 
son, James Monroe, John Marshall and Henry Clay, read law), 
in delivering the opinion of the court said: 

“If the Legislature should attempt to overleap the bounds 
prescribed to them by the people, I, in administering the public 
justice of the country, will meet the united powers at my seat 
in this tribunal; and, pointing to the Constitution, will say, to 
them, here is the limit to your authority; and hither, shall you 
go, but no further. ” 4 Call., 5-8. 


The Question in the Federal Convention of 1787. 

The members of the Convention which framed the Federal 
Constitution could not have been strangers to the question we 
are considering. We have already seen that the courts of five of 
the original thirteen states had exercised the power to declare 
enactments of their respective legislatures to be unconstitutional, 
before the Federal Convention met. 

In order to understand the question it is necessary to know 
just what action the Constitutional Convention took on it, and 
that we now proceed to show. 

On the 29th of May, 1787, Mr. Randolph submitted to the Con¬ 
vention his plan for a Constitution. The Eighth Resolution of 
the plan read: “That the Executive, and a convenient number 
of the national judiciary ought to compose a council of revision, 
with authority to examine every act of the national legislature 
before it shall operate, and every act of a particular legislature 
before a negative thereon shall be final; and that the dissent of 
the said council shall amount to a rejection, unless the act of 
the national legislature be again passed, or that of a particular 
Legislature be again negatived by the members of each branch.” 
2 Madison's Journal, 62, Scott’s Edition.* 

♦Randolph’s idea of a council of revision was probably suggested 
by a provision in the Constitution of New York, which was adopted in 
1777, and was in force when the Federal Convention met in 1787. It 
provided that the Governor, Chancellor and the Judges of the Su¬ 
preme Court should constitute a Council of Revision, to which all bills 
introduced into the Legislature should be submitted. 

Chancellor Kent paid the following tribute to this Council of Re¬ 
vision: 


» 




4 


It does not require a philosophical mind to distinguish between 
the functions of a Council >of Revision and those of a court. Mr. 
Randolph’s resolution only provided for a Council of Revision 
which should be empowered to examine every act of Congress 
before it ivent into operation , and that the dissent of the council 
should amount to a rejection of the act, unless Congress should 
again pass it. * “ The Council” under this plan was composed of 
the Executive, that is, the President, and a “ convenient number 
of the National Judiciary.” What number that would be, and 
who was to select them, the resolution did not provide. The 
resolution failed to make any reference to any court, 
but used the term “The Council of Revision.” This was to 
consist of two elements: First the Executive, and second, a 
convenient number of the National Judiciary. It is unnecessary 
to follow the details of the resolution through the debate on it 
in the convention. Suffice it to say, that it was defeated. 

On the 6th of June Mr. Wilson moved to reconsider the vote, 
and that motion was defeated, but three states, to-wit, Connecti¬ 
cut, New York and Virginia, voted for it. Madison’s Journal, 
123, Scott’s Edition. 

On the 21st of July, Mr. Wilson again moved: “That the 
Supreme National Judiciary should be associated with the Ex¬ 
ecutive in the revisionary power.” Madison’s Journal, 398, 
Scott’s Edition. 

This motion made the Supreme National Judiciary and the 
Executive, a council of revision. It was the same motion which 
had been defeated in the convention, except that it defined the 
number of judges who should be associated with the Executive, 
to-wit: the Supreme National Judiciary i. e., the Supreme Court. 
In effect it constituted the Supreme Court and the Executive, a 
council of revision, but this motion was also defeated. 

“The control which the judicial power of the State had, until the 
year 1823, over the passing of laws by the institution of the Council 
of Revision, anticipated in a great degree the necessity of this exer¬ 
cise of duty by the courts. A law containing unconstitutional pro¬ 
visions was not likely to escape the notice and objection of the Council 
of Revision, and the records of that body will show that many a bill 
which had heedlessly passed the two houses of the Legislature was 
objected to and defeated on Constitutional grounds.” 1 Kent, 491, 
11th Ed. 



5 


At a later period in the convention, to-wit, on August 15th, 
Mr. Madison brought the same question before the convention 
for the third and last time by making the following motion: 
“Every bill which shall have passed the two Houses shall, be¬ 
fore it become a law, be severally presented to the President of 
the United States, and to the Judges of the Supreme Court for 
the revision of each. If, upon such revision, they shall approve 
of it, they shall respectively signify their approbation by sign¬ 
ing it; but if, upon such revision, it shall appear improper to 
either, or both, to be passed into a law, it shall be returned with 
the objections against it, to that House in which it shall have 
originated, who shall enter the objections at large on their jour¬ 
nal, and proceed to reconsider the bill; but if, after such recon¬ 
sideration, two-thirds of that House, when either the President, 
or a majority of the judges shall object, or three-fourths, where 
both shall object, shall agree to pass it, it shall, together with the 
objections, be sent to the other House; by which it shall likewise 
be reconsidered, and, if approved by two-thirds, or three-fourths 
of the other House, as the same may be, it shall become a law.” 
Madison’s Journal, 532, 533, Scott’s Edition. 

This motion caused some debate in the convention but 
was defeated by a vote of three to five, being the same vote 
by which the original motion was defeated. The question was 
never again brought before the convention. At no time in the 
history of that body, according to Madison’s Journal, was the 
question, in any shape, or form, presented to the convention, 
that judges should have the power of declaring laws unconstitu¬ 
tional, and therefore such a motion coidd not have been defeated 
in the convention. Chief Justice Clark’s statement in his ad¬ 
dress already referred to, that, ‘ ‘ A proposition was made in the 
convention—as we now know from Madison’s Journal—that the 
judges should pass upon the constitutionality of acts of Con¬ 
gress,” seems to lack foundation in fact. Certainly there is not 
a line in Madison’s Journal which sustains his statement. 

No student of the Constitution, and no one ordinarily versed 
in the law, will claim that a motion, a resolution, or an amend¬ 
ment, which simply seeks to create a council of revision, is the 
same as conferring upon judges the power to pass upon the con¬ 
stitutionality of legislation. It is not only inaccurate as a his- 


6 


torical fact, to say that such a proposition was introduced into 
the convention and there defeated, but it is wrong to mislead 
the public upon such an important question. 

Three times the convention defeated a proposition creating a 
council of revision, but, at no time did it defeat a proposition 
conferring on the courts, power to interpret statutes, and declare 
them, unconstitutional. No such proposition teas submitted 
to the convention and therefore coidd not have been defeated. 

It is most unfortunate that an erroneous impression of what ac¬ 
tually occurred in the Constitutional Convention on this question 
should have been given to the people and circulated among 
them. Whatever their opinion on the subject may be, it should 
be based upon historical facts and not upon historical errors. 


The Question in the State Conventions. 

When the Constitution was submitted to the various states 
for ratification or rejection, the question of the power of the 
courts to pass upon the validity of legislation was considered in 
some of the state conventions. 

Oliver Ellsworth, who had been a member of the Constitution¬ 
al Convention from Connecticut, and who afterwards became 
Chief Justice of the United States Supreme Court, said in the 
Connecticut Convention: 

“This Constitution defines the extent of the powers of the 
general government. If the general Legislature should at any 
time overstep their limits, the judicial department is a constitu¬ 
tional check. If the United States go beyond their powers, if 
they make a law which the Constitution does not authorize, it is 
void; and the judicial power, the national judges who to secure 
their impartially are to be made independent, will declare it to 
be void.” Elliott’s Debates, Yol. 2, 196. 

While the question was being considered in the Virginia Con¬ 
vention, John Marshall, who had not been a member of the 
Federal Constitutional Convention, took part in the discussion 
upon the question, and defended the right of the courts to pass 
upon the validity of legislation and used this language: 

“If the United States were to make a law not warranted by 
any of the powers enumerated it would be considered by the 


7 


judges as an infringement of the Constitution which they are to 
guard. They would not consider such a law as coming under 
their jurisdiction. They would declare it void. To what quar¬ 
ter will you look for protection from an infringement on the Con¬ 
stitution, if you will not give the power to the judiciary ? There 
is no other body that can afford such protection.” Elliott’s De¬ 
bates, Vol. 3, 553. 

In the South Carolina Convention, Charles Pinckney discussed 
the question and referred to the duties and powers of the Su¬ 
preme Court as follows: 

“It would be their duty not only to decide all national ques¬ 
tions which should arise within the Union, but to control and 
keep the state judicials within their proper limits whenever they 
shall attempt to interfere with its power.” Elliott’s Debates, 
Vol. 4, 258. 

In the Convention of Pennsylvania, James Wilson, who had 
been a member of the Constitutional Convention and afterwards 
became a Justice of the Supreme Court of the United States, said : 

“ If a law should be made inconsistent with those powers vested 
by this instrument in Congress, the judges, as a consequence of 
their independence and the particular powers of government 
being defined, will declare such law to be null and void. For the 
power of the Constitution predominates. Anything, therefore, 
that shall be enacted by Congress contrary thereto, will not have 
the force of law.” American Historical Review, Yol. 13, No. 2, 
284. 

Luther Martin, who was one of the most influential members 
of the Convention from Maryland, and who was opposed to much 
of the Constitution, after the convention had adjourned de¬ 
livered an address to the Legislature of Maryland and in refer¬ 
ence to the power of the courts, spoke as follows: 

‘ ‘ These courts, and these only, will have a right to decide upon 
the laws of the United States, and all questions arising upon 
their construction, and in a judicial manner to carry those laws 
into execution. Whether, therefore, any laws or regulations of the 
Congress, any acts of its President or other officer, are contrary 
to, or not warranted by, the Constitution, rests only with the 
judges, who are appointed by Congress to determine. ’ ’ Elliott s 
Debates, Yol. 1, 380. 


8 

Alexander Hamilton stated his views concerning the question in 
the Federalist, as follows: 

“Some perplexity, respecting the right of the courts to pro¬ 
nounce legislative acts void, because contrary to the 
Constitution, has arisen from an imagination that the doctrine 
would imply a superiority of the Judiciary to the Legislative 
power. * * * If it be said that the legislative body are 

themselves the constitutional judges of their own powers, and 
that the construction they put upon them is conclusive upon the 
other departments, it may be answered, that this can not be the 
natural presumption where it is not to be recollected from any 
particular provisions in the Constitution. It is not otherwise to 
be supposed, that the Constitution could intend to enable the 
representatives of the people to substitute their will to that of 
their constitutents. It is far more rational to suppose that the 
courts were designed to be an intermediate body between the 
people and the Legislature, in order, among other things, to keep 
the latter within the limits assigned to their authority. The 
interpretation of the laws is the proper and peculiar province of 
the courts. A Constitution is, in fact, and must be regarded by 
the Judges, as a fundamental law. It must, therefore, belong to 
them to ascertain its meaning, as well as the meaning of any 
particular act proceeding from the Legislative body. * * * It 
can be of no weight to say, that the courts, on the pretense of a 
repugnancy, may substitute their own pleasure to the constitu¬ 
tional intentions of the Legislature. This might as well happen 
in the case of two contradictory statutes; or it might as well hap¬ 
pen in every adjudication upon any single statute. The courts 
must declare the sense of the law; and if they should be disposed 
to exercise will instead of judgment, the consequence would 
equally be the substitution of their pleasure to that of the legis¬ 
lative body.” The Federalist, No. 78. 


The Question in the Federal Courts. 

The power of the federal courts to declare an act of Con¬ 
gress unconstitutional first came before such a court in Van 
Horn’s Lessee v. Dorrance, decided on the circuit in 1795. Mr. 
Justice Patterson delivering the opinion said: 

“I take it to be a clear position; that if a legislative act op¬ 
pugns a constitutional principle, the former must give way, and 
be rejected on the force of repugnance. I hold it to be a posi¬ 
tion equally clear and sound, that, in such case, it will be the 


9 


duty of the Court to adhere to the Constitution, and to declare 
the act null and void.” 2 Dallas, 309. 

The subject was considered by the Supreme Court of the 
United States for the first time in Cooper v. Telfair, 4 Dallas, 14. 
Each of the judges who constituted the court delivered an opin¬ 
ion, and held that while the case under consideration did not 
justify them in applying the principle in that particular case, 
they had no doubt of the power of the court under the Federal 
Constitution to declare laws invalid which conflicted with that 
instrument. 

In Marbury v. Madison, decided in February, 1803, the author¬ 
ity of the courts to declare an act of Congress void was first 
announced by the Supreme Court of the United States. Chief 
Justice Marchall delivering the opinion of the court said: 

“It is emphatically the province and duty of the judicial de¬ 
partment to say what the law is. Those who apply the rule to 
particular cases must of necessity expound and interpret that 
rule. If two laws conflict with each other, the courts must 
decide on the operation of each. So, if a law be in opposition to 
the Constitution; if both the law and the constitution apply 
to a particular case, so that the court must either decide that 
case conformably to the law, disregarding the constitution; or 
conformably to the constitution, disregarding the law; the court 
must determine which of these conflicting rules governs the case. 
This is of the very essence of judicial duty.” 1 Cranch, 177. 

In his great opinion in Martin v. Hunter, Mr. Justice Story 
said: 

1 ‘ The courts of the United States can, without question, revise 
the proceedings of the executive and legislative authorities of the 
states, and if they are found to be contrary to the constitution, 
may declare them to be of no legal validity.” 1 Wheaton, 304, 
344. 

This opinion was followed by the masterful discussion of 
Marshall, in Cohens v. Virginia, in which the great chief jus¬ 
tice said: 

“The Constitution and laws of a State, so far as they are 
repugnant to the constitution and laws of the United States are 
absolutely void. In a government so constituted, is it unreason- 


10 


able that the judicial power should be competent to give efficacy 
to the constitutional laws of the legislature? That department 
can decide on the validity of the constitution or law of a state, 
if it be repugnant to the constitution or to a law of the United 
States. Is it unreasonable that it should also be empowered to 
decide on the judgment of a State tribunal enforcing such uncon¬ 
stitutional law ? Is it so very unreasonable as to furnish a justi¬ 
fication for controlling the words of the constitution? We think 
it is not. We think that in a government acknowledgedly su¬ 
preme, with respect to objects of vital interest to the nation, 
there is nothing inconsistent with sound reason, nothing incom¬ 
patible with the nature of government, in making all its depart¬ 
ments supreme, so far as respects those objects, and so far as is 
necessary to their attainment. The propriety of entrusting the 
construction of the constitution, and laws made in pursuance 
thereof to the judiciary of the Union, has not, we believe, as yet, 
been drawn into question.” 6 Wheaton, 414, 415. 


The doctrine was fully examined and commented upon in the 
exhaustive opinion of Mr. Justice Wayne in Dodge v. Woolsey, 
decided in 1855. In his opinion, Mr. Justice Wayne uses this 
language: 

“Men unite in civil society, expecting to enjoy peacefully 
what belongs to them, and that they may regain it by the law 
when wrongfully withheld. That only can be accomplished by 
good laws, with suitable provisions for the establishment of 
courts of justice, and for the enforcement of their decisions. 
The right to establish them flows from the same source which 
determines the extent of the legislative and executive powers of 
the government. Experience has shown that the object can not 
be attained without a supreme tribunal as one of the depart¬ 
ments of the government, with defined powers in its organic 
structure, and the mode for exercising them to be provided 
legislatively. This had been done in the Constitution of the 
United States. Its framers were well aware of this responsi¬ 
bility to secure justice to the people; and well knew, as the 
object of all trials in courts was to determine the suits between 
citizens, that it could not be done satisfactorily to them, unless 
they had the privilege to appeal from the first tribunal which had 
jurisdiction of a suit to another which should have authority to 
pronounce definitely upon its merits (Yattel, 9th chap, on Justice 
and Polity). Without such a court the citizens of each State 
could not have enjoyed all the privileges and immunities of 
citizens in the several States, as they were intended to be secured 
by the second section of the fourth article of the constitution. 


11 


* * # Without the Supreme Court, as it has been constitution¬ 

ally and legislatively constituted, neither the constitution nor 
the laws of congress passed in pursuance of it, nor treaties, would 
be in practice or in fact the supreme law of the land, and the 
injunction that the judges in every State should be bound there¬ 
by, anything in the Constitution or laws of any State to the con¬ 
trary notwithstanding, would be useless, if the judges of state 
courts, in any of the States, could finally determine what 
was the meaning and operation of the Constitution and laws of 
Congress, or the extent of the obligation of treaties.” 18 How¬ 
ard, 331, 354, 355. 

In 1858 Chief Justice Taney announced his great opinion in 
Ableman v. Booth, in which he reviewed the question under con¬ 
sideration at great length. Perhaps there is no more forceful 
exposition of the power of the Federal Courts, under the Con¬ 
stitution, to declare invalid an act of Congress which conflicts 
with the Constitution, than is found in this elaborate opinion. 
It carries the doctrine to its extreme limit and boldly announces 
that the power of the courts to declare legislation invalid, “is 
too plain to admit of doubt, or to need comment.” “The Con¬ 
stitution, ’ ’ says the opinion, ‘ ‘ was not formed merely to guard the 
states against danger from foreign nations, but mainly to secure 
union and harmony at home; for if this object could be attained, 
there would be but little danger from abroad; and to accomplish 
this purpose, it was felt by the statesmen who framed the Consti¬ 
tution, and by the people who adopted it, that it was necessary 
that many of the rights of sovereignty which the states then 
possessed should be seceded to the general government; and that 
in the sphere of action assigned to- it, it should be supreme, and 
strong enough to execute its own laws by its own tribunals, with¬ 
out interruption from a state or from state authorities. And it 
was evident that anything short of this would be inadequate to 
the main objects for which the government was established; and 
that local interests, local passions or prejudices, incited and 
fostered by individuals for sinister purposes, would lead to acts of 
aggression and injustice by one state upon the rights of another, 
which would ultimately terminate in violence and force, unless 
there was a common arbiter between them, armed with power 
enough to protect and guard the rights of all by appropriate 


12 

laws to be carried into execution peacefully by its judicial tri¬ 
bunals, 

“The language of the Constitution, by which this power is 
granted is too plain to admit of doubt or to need comment. * # 

* But the supremacy thus conferred on this Government could 

not be peacefully maintained, unless it was clothed with judicial 
power, equally paramount in authority to carry it into execution; 
for if left to the courts of justice of the several states, conflicting 
decisions would unavoidably take place, and the local tribunals 
could hardly be expected to be always free from the local in¬ 
fluences of which we have spoken.* * * Accordingly, this 

power was conferred on the general government, in clear, precise, 
and comprehensive terms. It is declared that its judicial power 
shall extend to all cases in law and equity arising under the 
Constitution and laws of the United States, and that such cases, 
as well as the others there enumerated, this court shall have 
appellate jurisdiction both as to law and fact, with such ex- 
ceptiohs and under such regulations as Congress shall make. 

* * * This judicial power (p. 520) was justly regarded as 

indispensable, not merely to maintain the supremacy of the laws 
of the United States, but also to guard the states from any en¬ 
croachment upon their reserved rights by the general government. 
And as the Constitution is the fundamental and supreme law, 
if it appears that the act of Congress is not pursuant to and 
within the limits of the power assigned to the Federal Govern¬ 
ment, it is the duty of the courts of the United States to declare 
it unconstitutional and void. * * * No one can fail to see, 

that if such an arbiter had not been provided, in our complicated 
system of government, internal tranquility could not have been 
preserved. * * * In organizing such a tribunal, it is evi¬ 

dent that every precaution was taken which human wisdom could 
devise, to fit it for the high duty with which it was intrusted. 

* * * So long, therefore, as this Constitution shall endure, 

this tribunal must exist with it, deciding in the peaceful forms 
of judicial proceeding, the angry and irritating controversies 
between sovereignties, which in other countries have been deter¬ 
mined by the arbitrament of force.” 21 Howard, 517. 

The opinions which we have cited are fully sustained by the 
more modern decisions. Chief Justice Chase in Hepburn v. 
Griswold stated the rule to be: 

“When a case arises for judicial determination and the de¬ 
cision depends on the alleged inconsistency of a legislative pro¬ 
vision with the fundamental law, it is the plain duty of the court 


vs 


to compare the act with the Constitution, and if the former can 
not, upon a fair bonstruction, be reconciled with the latter, to 
give effect to the Constitution rather than the statute. This 
seems so plain that it is impossible to make it plainer by argu¬ 
ment. If it be otherwise the Constitution is not the supreme 
law; it is neither necessary or useful, in any case, to inquire 
whether or not, any act of Congress was passed in pursuance of 
it; and the oath which every member of this court is required to 
take, becomes an idle and unmeaning form.” 8 Wallace, 603. 
611. 


Mr. Justice Harlan in Lent v. Tillson went as far as any of ^ 
his predecessors and used this language: 

It is the duty of a county court to hold a statute unconstitu¬ 
tional and void—if such is its opinion. “That court is obliged 
by its oath of office, and in fidelity to the supreme law of the 
land, to refuse to give effect to any statute that was repugnant 
to the law, anything in the statute or the Constitution of the 
State to the contrary notwithstanding.” 140 U. S., 316, 329. 


-L 


‘ ‘ The duty rests upon all courts, Federal and State, ’ ’ said the 
same learned justice in Smythe v. Ames, “When their jurisdic¬ 
tion is properly invoked, to see to it that no right secured by the 
supreme law of the land is impaired or destroyed by legislation. 
This function and duty of the judiciary distinguishes the Amer¬ 
ican system from all other other systems of government. The 
perpetuity of our institutions and the liberty which is enjoyed 
under them depend, in no small degree, upon the power given the 
judiciary to declare null ayid void all legislation that is clearly 
repugnant to the supreme law of the land.” 169 U. S., 466, 527, 
528. 


Mr. Justice Brewer in Fairbanh, v. United States, said: 

“The judicial duty of upholding the provisions of the Con¬ 
stitution as against any legislation conflicting therewith has be¬ 
come now an accepted fact in the judicial life of the nation.” 
181 U. S., 286. 

In the later case of McCray v. United States, Mr. Justice 
White said: 

“Whilst, as a result of our written constitution, it is axioma¬ 
tic that the judicial department of the government is charged 
with the solemn duty of enforcing the Constitution, and there- 



14 


fore in cases properly presented, of determining whether a given 
manifestation of authority has exceeded the power conferred by 
that instrument,('no instance is afforded from the foundation of 
the government where an act, which was within a power con¬ 
ferred, was declared to be repugnant to the Constitution, be¬ 
cause it appeared to the judicial mind that the particular ex¬ 
ertion of constitutional power was either unwise or unjust. To 
announce such a principle would amount to declaring that in our 
constitutional system the judiciary was not only charged with 
the duty of upholding the Constitution but also with the responsi¬ 
bility of correcting every possible abuse arising from the exercise 
by the other departments of their conceded authority. So to 
hold would be to overthrow the entire distinction between the 
legislative, judicial and executive departments of the government, 
upon which our system is founded, and would be a mere act of 
judicial usurpation.” 195 U. S., 27, 53, 54. 

Mr. Justice Day in the recent case of Muskrat v. United States> 
after commenting upon many of the preceding cases, made the 
following philosophical comment on the general proposition: 

“The right to declare a law unconstitutional arises because 
an act of Congress relied upon by one or the other of such parties 
in determining their rights is in conflict with the fundamental 
law. The exercise of this, the most important and delicate duty 
of this court, is not given to it as a body with revisory power 
over the action of Congress, but because the rights of the liti¬ 
gants in justicable controversies require the court to choose 
between the fundamental law and a law purporting to be enacted 
within constitutional authority, but in fact beyond the power 
delegated to the legislative branch of the Government.” 219 
U. S., 346, 361. 

The most profound exponent of the Federal Constitution which 
the American bar has produced was Daniel Webster. As an 
advocate he stands peerless and alone in the field of constitu¬ 
tional controversy and interpretation. While he did not speak 
with judicial authority, what he said concerning the Constitution 
is of such momentous weight that it can not be ignored. In his 
great speech in the Senate on January 26, 1830, he spoke as 
follows on the power of the courts to construe the Constitution: 

“But, sir, the people have wisely provided, in the Constitution 
itself, a proper, suitable mode and tribunal for settling questions 


15 


of constitutional law. There are in the Constitution grants of 
powers to Congress, and restrictions on these powers. There are, 
also prohibitions on the states. Some authority must, therefore, 
necessarily exist, having the ultimate jurisdiction to fix and 
ascertain the interpretation of these grants, restrictions and pro¬ 
hibitions. The Constitution has itself pointed out, ordained and 
established that authority. How has it accomplished this great 
and essential end ? By declaring, sir, that ‘ the Constitution and 
the laws of the United States made in 'pursuance thereof, shall he 
the supreme law of the land, anything in the Constitution or laws 
of any state to the contrary notwithstanding This sir, was 
the first great step. By this the supremacy of the Constitution 
and laws of the United States is declared. The people so will it. 
No state law is to be valid which comes in conflict with the Con¬ 
stitution, or any law of the United States passed in pursuance of 
it. But who shall decide this question of interference? To 
whom lies the last appeal? This, sir, the Constitution itself 
decides also, by declaring, l that the judicial power shall extend 
to all cases arising under the Constitution, and laws of the United 
States . ’ These two provisions cover the whole ground. They 
are, in truth, the keystone of the arch. With these it is a govern¬ 
ment ; without them it is a confederation. In pursuance of these 
clear and express provisions, Congress established at its very 
first session, in the judicial act, a mode of carrying them into 
full effect, and for bringing all questions of constitutional power 
to the final decision of the Supreme Court. If then, sir, because 
a government. It then had the means of self protection; and 
but for this, it would, in all probability, have been now among 
things which are past.” Webster’s Works, Vol. 3, 334, 335. 

So eminent an authority as Judge Story in discussing this 
question has said: 

“From this supremacy of the Constitution and laws and trea¬ 
ties of the United States, within their constitutional scope, arises 
the duty of courts of justice to declare any unconstitutional law 
passed by Congress or by a state Legislature void. So, in like 
manner, the same duty arises whenever any other department of 
the national or state governments exceeds its constitutional func¬ 
tions. ” Story on the Constitution, Vol. 2, 610, 611. 

The Constitution says : 

“The judiciary power of the United States shall be vested in 
one Supreme Court and in such inferior courts as the Congress 
shall from time to time ordain and establish. ” Constitution, Art. 
Ill, Sec. 1. 



16 

Judicial power is the power to hear and determine a cause. 
Mr. Justice Miller said: 

4 ' It is the power of the court to decide and pronounce a judg¬ 
ment and carry it into effect between pe" ms or parties who 
bring a case before it for decision. ’ ’ Millei on the Constitution, 
313. 

Suppose a case is presented to a federal judge which involves 
the validity of an act of Congress? Does not the judge have the 
power to pass upon the constitutionality of the statute in such a 
case ? How could it be otherwise ? How could the judge decide 
the case without deciding whether or not the act was, or was not, 
constitutional? When the basis for a claim fails, the claim must 
also fail. 

The Constitution is the supreme law of the land, made so by 
its own provisions. If it is not the function of the courts to give 
it a construction, where is the power found wdiich shall? Sup¬ 
pose two laws are directly in conflict, one constitutional and the 
other not, what tribunal is ultimately to decide which of the two 
is unconstitutional, unless it be the courts? 


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